953 F.

2d 6

UNITED STATES of America, Appellee,

v.
Richard Harmon BELL, Defendant, Appellant.
No. 91-1479.

United States Court of Appeals,

First Circuit.
Heard Dec. 3, 1991.
Decided Jan. 2, 1992.

Sarah Jennings Hunt, for defendant, appellant.

Robert J. Veiga, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S.
Atty., was on brief, for U.S.
Before CAMPBELL and TORRUELLA, Circuit Judges, and POLLAK,*
Senior District Judge.
LEVIN H. CAMPBELL, Circuit Judge.

In this sentencing guidelines appeal, defendant Richard Harmon Bell challenges

the upward adjustment of his base offense level for obstruction of justice. We
vacate the sentence and remand for resentencing.

On August 21, 1990, Bell was scheduled to stand trial on various firearms
charges in the district court for the District of New Hampshire. When he failed
to appear that day, a bench warrant was issued for his arrest. On August 29,
1990, Bell was indicted for failure to appear, a violation of 18 U.S.C. 3146(a)
(1). Slightly less than two months later, in early October 1990, Bell was
arrested by United States Marshals in Newfield, Maine.

Although he was acquitted on the underlying firearms charges, Bell pleaded

guilty to failure to appear. The district court set Bell's base offense level at 6
and his specific offense characteristic at 9. The court also granted a two point
downward adjustment for acceptance of responsibility, and a two point upward

adjustment for obstruction of justice, making a total offense level of 15. The
sole issue in this appeal is whether the district court erred in adjusting upward
for obstruction of justice.
4

The upward adjustment was based upon two sources of evidence. First, Deputy
Marshal Robert J. Roberg testified at a sentencing hearing about the
circumstances of Bell's arrest. Roberg stated that a group of seven law
enforcement officers apprehended Bell and four other people at an auto body
shop. When the officers approached the scene, Bell was standing next to a
pickup truck with his hands on the hood. The officers shouted "get down,
freeze, police," and the four other men immediately dropped to the ground.
Bell, however, hesitated several seconds, "survey[ed] the area" and moved his
hands "back off the truck" out of Roberg's view before dropping to the ground.
A search revealed that Bell had on his person a loaded .357 magnum handgun
and extra ammunition. In addition to this testimony, the presentence report
stated that Bell had rented a post office box using the alias "Eric McGrath"
prior to his arrest. At the time of his arrest, Bell was carrying the key to this
post office box.

Based on this evidence, the district court imposed a two point upward
adjustment for obstruction of justice. The court explained its reasoning as
follows:

6 fact the defendant had a loaded, concealed weapon on his person at the time of
The
his apprehension in Maine and, in addition, had additional ammunition on his
person, indicates a clear, willful intent to obstruct his apprehension.
7
Additionally,
I find that his failure to immediately obey the officer's command to get
down at the time of his apprehension ... also is a factor in the finding that I'm
making.
8
Finally,
I think that the acquisition of the post office box in an assumed name, false
name, was done with a willful intention to obstruct in this case.
9

Although the court did not specify the guideline pursuant to which it imposed
the adjustment, the presentence report and the government's sentencing
memorandum recommended an obstruction adjustment pursuant to U.S.S.G.
3C1.1. The government argued that its position was supported by 3C1.2, a
related provision, but stated that that section did not directly apply because it
had been enacted after Bell's arrest.

10

In considering Bell's appeal, we review de novo the question whether the scope

of the guidelines encompasses Bell's conduct. See United States v. Moreno,

947 F.2d 7, 9 (1st Cir.1991) (discussing 3C1.1). And in conducting that
review, we apply the guidelines in effect on the date of sentencing. United
States v. Cousens, 942 F.2d 800, 802 n. 1 (1st Cir.1991) (absent ex post facto
problem, sentence is reviewed under guidelines in effect at time of sentencing,
not commission of offense). Because we are constrained to find that under
guidelines in force on April 1, 1991, the date of Bell's sentencing, the conduct
relied upon by the court was insufficient for a two point upward adjustment for
obstruction of justice, we vacate Bell's sentence and remand for resentencing.
11

The relevant Sentencing Guidelines contain two provisions dealing with

obstruction of justice. Section 3C1.1 provides that

12the defendant willfully obstructed or impeded, or attempted to obstruct or impede,

If
the administration of justice during the investigation, prosecution, or sentencing of
the instant offense, increase the offense level by 2 levels.
13

U.S.S.G. 3C1.1. 1 This was the only obstruction provision in effect until
November 1, 1990. On November 1, 1990 3C1.2 took effect, codifying an
adjustment for reckless endangerment during flight, which many courts had
been imposing under 3C1.1. See, e.g., United States v. John, 935 F.2d 644,
648 (4th Cir.1991); United States v. Hagan, 913 F.2d 1278, 1284-85 (7th
Cir.1990) (both cases discussing obstruction adjustment for reckless
endangerment before adoption of 3C1.2). That section provides for a two
level adjustment where the defendant "recklessly created a risk of death or
serious bodily injury to another person in the course of fleeing from a law
enforcement officer." U.S.S.G. 3C1.2. In addition, a number of Application
Notes were promulgated, clarifying the application of both 3C1.1 and the new
3C1.2.

14

We consider first whether Bell's use of an alias to obtain a post office box
constituted an obstruction of justice under the post-November 1, 1990
guidelines. As such conduct does not relate to reckless endangerment, we apply
3C1.1. The district court concluded that Bell had obtained the post office box
with a "willful intention to obstruct," without explaining further. We think this
conclusion may be treated as a finding that Bell's purpose in obtaining the post
office box was to make it more difficult for the authorities to locate him.
However, the November 1990 Application Notes to 3C1.1 indicate that such
conduct does not rise to the level of an obstruction of justice.

15

Application Note 4(d) by its terms prohibits an upward adjustment for

"avoiding or fleeing from arrest." U.S.S.G. 3C1.1 comment. (n.4(d))

(emphasis added). That is exactly what the district court found Bell to have
done here, avoiding (or attempting unsuccessfully to avoid) arrest by using a
false name on his post office box. Such conduct, while reprehensible, does not
warrant an obstruction adjustment under 3C1.1. Cf. United States v. Madera
Gallegos, 945 F.2d 264 (9th Cir.1991) (no adjustment where defendant fled his
home upon learning arrest was imminent and remained in Mexico for nine
months). This conclusion is reinforced by Application Note 3, which sets forth
a non-exhaustive list of conduct to which the enhancement applies. That list
includes committing perjury, threatening witnesses, providing false information
to a judge, and other conduct with a more direct and deleterious effect on the
investigation than that at issue here. See United States v. Wilson, 904 F.2d 234,
236 (5th Cir.1990) ("Section 3C1.1 is meant to cover cases of destroying or
concealing evidence, testifying untruthfully or suborning perjury, threatening
witnesses or lying to an officer during the course of an investigation").
16

Moreover, the Application Notes also deal specifically with the use of false
names and the making of false statements. While they do not directly address
the use of a false name to attempt to avoid capture, their treatment of other
conduct strongly suggests that an upward adjustment may not be based on the
use of an alias to elude capture unless the investigation is actually impeded.
Application Note 3 sets forth a "non-exhaustive list of the types of conduct to
which this enhancement applies" which includes the following:

(f) providing materially false information to a judge or magistrate;

17
18 providing a materially false statement to a law enforcement officer that
(g)
significantly obstructed the official investigation or prosecution of the instant
offense ....
19

U.S.S.G. 3C1.1, comment. (n. 3). In contrast, Note 4 sets forth a

nonexhaustive list of conduct which does not warrant enhancement, including

20 providing a false name or identification document at arrest, except where such

(a)
conduct actually resulted in a significant hindrance to the investigation or
prosecution of the instant offense.
21 making false statements, not under oath, to law enforcement officers, unless
(b)
Application Note 3(g) above applies....
22

U.S.S.G. 3C1.1, comment. (n. 4).

23

Applying these Notes in United States v. Moreno, 947 F.2d 7, 9-10 (1st

Cir.1991), this court held that an upward adjustment was erroneous where the
defendant had done no more than give an alias to law enforcement officers
during the investigation. We first found that, as there had been no false
statement under oath (Note 4(b)), an adjustment could be imposed only if the
defendant's conduct satisfied the requirement of Note 3(g) that there be an
effect on the investigation. Id. at 10. We then found support for this holding in
Note 4(a), which requires an effect on the investigation where the alias is given
at arrest. We reasoned that, as proper identification is particularly important at
arrest, the defendant's use of a false name during the investigation was less
serious than the same conduct at arrest. Id. at 10 n. 2. We therefore concluded
that an actual obstruction of the investigation would be required for adjustment,
and, as there had been no such showing, the adjustment was error.
24

It follows from Moreno 's interpretation of the Application Notes that Bell's
conduct in the instant case would not warrant an upward adjustment unless it
actually hindered the investigation. Like that of the defendant in Moreno, Bell's
alias was not given under oath to a law enforcement officer, suggesting that an
effect on the investigation would be required by Note 3(g). And, as in Moreno,
this conclusion is supported by Note 4(a) because Bell's conduct is less serious
than providing a false name at arrest. Instead of giving an alias to an arresting
officer (Note 4(a)) or even to an investigating officer (Moreno ), Bell gave a
false name to uninvolved postal officials with the hope of eluding capture. Such
conduct, while certainly not to be condoned, is obviously less serious than that
dealt with under Note 4(a). Therefore, if an adjustment could be based on such
conduct at all, a showing that the investigation was impeded would also be
required. As there was no showing or even assertion by the government to this
effect, Bell's conduct did not warrant an adjustment under 3C1.1.2

25

We turn next to Bell's possession of the loaded firearm and ammunition and his
momentary hesitation upon arrest. The district court concluded that Bell's
possession of the firearm and ammunition "indicate[d] a clear, willful intent to
obstruct his apprehension," and that Bell's momentary hesitation was "another
factor" in its finding. The district court did not, however, state exactly how
Bell's actions fell within the obstruction provisions of the guidelines. We shall
assume the district court meant that Bell's possession of the weapon indicated
an intent to use it, if possible, to prevent his apprehension, and that Bell
contemplated doing so during the few seconds of his hesitation. But even
assuming the available evidence supported such a finding,3 we conclude that
possession of the firearm, intent to use it to obstruct apprehension if possible,
and momentary hesitation in submitting to arrest, would not warrant an
obstruction adjustment under current guidelines.

26

Although the government and apparently the court assumed that Bell's conduct
was governed by 3C1.1, it is 3C1.2 which in fact addresses this kind of
situation. The Application Notes to 3C1.1 specifically provide that "avoiding
or fleeing from arrest" does not warrant an adjustment under that section.
U.S.S.G. 3C1.1 comment. (n. 4(d)). However, the 1990 amendments added
3C1.2, which provides for an enhancement where a defendant "recklessly
created a risk of death or serious bodily injury to another person in the course of
fleeing from a law enforcement officer." U.S.S.G. 3C1.2. Application Note 3
to that section states that "this adjustment also is applicable where the conduct
occurs in the course of resisting arrest." U.S.S.G. 3C1.2 comment. (n. 3). As
we are to apply the guidelines in effect at the time of sentencing, United States
v. Cousens, 942 F.2d 800, 802 n. 1 (1st Cir.1991), and as 3C1.2 is addressed
to situations involving the risk of death or harm caused where a defendant
resists arrest, we proceed to determine whether Bell's actions warranted an
adjustment under 3C1.2.

27

In enacting 3C1.2 the Commission created a new guideline which adopted

the holding of a number of courts that, under 3C1.1, mere flight from arrest
was not sufficient for an adjustment, but that flight plus endangerment was
enough.4 See, e.g., United States v. John, 935 F.2d 644, 648 (4th Cir.1991)
(before 3C1.2 adjustment proper if struggle at arrest endangered officer's
safety); United States v. Hagan, 913 F.2d 1278, 1284-85 (7th Cir.1990) (before
3C1.2 no adjustment based on flight on foot by unarmed defendant,
contrasting high speed auto chase creating "almost mortal" situation). We do
not think Bell's conduct in this case can be said to rise to the level of that
punished by 3C1.2. Even were it possible to infer that Bell obtained the gun
for the purpose of resisting arrest and contemplated its use for a few critical
seconds, he did not use the gun. Nor did he make any clear attempt to draw it.
Although Bell's conduct came close to the line, something more--reaching for
the gun, for example--would be required for a finding that Bell recklessly
created a "risk of death or serious bodily injury." Section 3C1.2 punishes the
act of creating a risk of death, not merely the intent to create such a risk. Here,
Bell's overt conduct fell short, if not by much.5

28

For the reasons stated above the sentence imposed by the district court is
vacated and the case is remanded for resentencing.

29

So ordered.

Of the Eastern District of Pennsylvania, sitting by designation

Application Note 6 to 3C1.1 provides that where the underlying offense (in
this case failure to appear) relates to obstruction of justice, an adjustment
should be granted only where a "significant further obstruction occurred during
the investigation or prosecution of the obstruction offense itself." U.S.S.G.
3C1.1 comment. (n. 6). It appears that the purpose of this Note is to avoid
"double counting" by preventing a person from being convicted of a crime and
receiving an adjustment for the same conduct. Here the conduct relied upon by
the judge--Bell's hesitation, his carrying of a loaded weapon, and his renting of
a post box under an alias--was conduct different from his failure to appear.
Whether this conduct would have otherwise amounted to a "significant further
obstruction" is an issue we need not address, as we hold that Bell's conduct
cannot constitute an obstruction under the new post-November 1, 1990
Application Notes discussed in the text

It is arguable whether Bell's use of an alias could have provided a basis for
enhancement prior to the November 1990 amendments. Cf. United States v.
Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (before amendments enhancement
proper where defendant gave false name to FBI agent but recanted two days
later). However, under the November 1990 amendments, it is clear that Bell's
conduct did not warrant an adjustment. See Moreno, 947 F.2d at 10 n. 3
("actual, significant hindrance to investigation is necessary when false aliases
are given, not under oath, during the investigation" and "[n]o cases decided
after the 1990 clarification conflict with [that] holding") (quoting United States
v. Urbanek, 930 F.2d 1512, 1515 n. 2 (10th Cir.1991))

The only evidence was Deputy Marshal Roberg's testimony that Bell had the
loaded firearm on his person at the time of the arrest. Although the district
court, as factfinder, may draw all reasonable inferences from the evidence, it is
a substantial leap from Roberg's testimony that Bell had a gun and hesitated a
moment when arrested to the conclusion that he intended to use the gun to
hinder his arrest. That Bell had originally failed to appear on a firearms charge
makes it likely that he regularly carried a gun, and perhaps less likely that he
obtained a gun for the specific purpose of hindering his arrest

We note that 3C1.2, by codifying the result reached by a number of courts,

clarified, rather than changed, the existing law under the earlier 3C1.1

Section 3C1.1 provides for adjustment based on an attempt to obstruct justice,

while 3C1.2 does not mention an attempt. Assuming, arguendo, that 3C1.2
could be read as encompassing a situation where a defendant attempts to create
a risk of death or serious bodily harm, Bell has not taken the "substantial step"
toward carrying out his intent necessary for a finding of attempt. See Generally,
United States v. Dworken, 855 F.2d 12, 16 (1st Cir.1988) (in criminal liability--

not sentencing--context, attempt occurs when defendant, acting with the

necessary mens rea, "purposely ... [does an act] constituting a substantial step
in a course of conduct planned to culminate in his commission of the crime")
(quoting with approval American Law Institute, Model Penal Code 5.01(1)(c)
(1985) (emphasis added))